[Federal Register Volume 81, Number 211 (Tuesday, November 1, 2016)]
[Proposed Rules]
[Pages 75753-75757]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26062]
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FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Parts 326 and 391
RIN 3064-AE47
Removal of Transferred OTS Regulations Regarding Minimum Security
Procedures Amendments to FDIC Regulations
AGENCY: Federal Deposit Insurance Corporation.
ACTION: Notice of proposed rulemaking.
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SUMMARY: In this notice of proposed rulemaking (``NPR'' or ``Proposed
Rule''), the Federal Deposit Insurance Corporation (``FDIC'') proposes
to rescind and remove a part from the Code of Federal Regulations
entitled ``Security Procedures'' and to amend FDIC regulations to make
the removed Office of Thrift Supervision (``OTS'') regulations
applicable to state savings associations.
DATES: Comments must be received on or before January 3, 2017.
ADDRESSES: You may submit comments by any of the following methods:
FDIC Web site: http://www.fdic.gov/regulations/laws/federal/propose.html. Follow instructions for submitting comments on
the agency Web site.
FDIC Email: [email protected]. Include RIN #3064-AE47 on
the subject line of the message.
FDIC Mail: Robert E. Feldman, Executive Secretary,
Attention: Comments, Federal Deposit Insurance Corporation, 550 17th
Street NW., Washington, DC 20429.
Hand Delivery to FDIC: Comments may be hand delivered to
the guard station at the rear of the 550 17th Street building (located
on F Street) on business days between 7 a.m. and 5 p.m.
Please include your name, affiliation, address, email address, and
telephone number(s) in your comment. Where appropriate, comments should
include a short Executive Summary consisting of no more than five
single-spaced pages. All statements received, including attachments and
other supporting materials, are part of the public record and are
subject to public disclosure. You should submit only information that
you wish to make publicly available.
Please note: All comments received will be posted generally
without change to http://www.fdic.gov/regulations/laws/federal/propose.html, including any personal information provided. Paper
copies of public comments may be requested from the Public
Information Center by telephone at 1-877-275-3342 or 1-703-562-2200.
FOR FURTHER INFORMATION CONTACT: Lauren Whitaker, Attorney, Consumer
Compliance Section, Legal Division (202) 898-3872; Martha L. Ellett,
Counsel, Consumer Compliance Section, Legal Division, (202) 898-6765;
Karen Jones Currie, Senior Examination Specialist, Division of Risk
Management and Supervision (202) 898-3981.
SUPPLEMENTARY INFORMATION: Part 391, subpart A was included in the
regulations that were transferred to the FDIC from the Office of Thrift
Supervision (``OTS'') on July 21, 2011, in connection with the
implementation of applicable provisions of title III of the Dodd-Frank
Wall Street Reform and Consumer Protection Act (``Dodd-Frank Act'').
With the exception of one provision (Sec. 391.5) the requirements for
State savings associations in part 391, subpart A are substantively
identical to the requirements in the FDIC's 12 CFR part 326 (``part
326''), which is entitled ``Minimum Security Procedures.'' The one
exception directs savings associations to comply with appendix B to
subpart B of Interagency Guidelines Establishing Information Security
Standards (Interagency Guidelines) contained in FDIC rules at part 364,
appendix B. The FDIC previously revised part 364 to make the
Interagency Guidelines applicable to both state nonmember banks and
state savings associations.\1\
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\1\ 80 FR 65907 (Oct. 28, 2015).
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The FDIC proposes to rescind in its entirety part 391, subpart A
and to modify the scope of part 326 to include state savings
associations to conform to and reflect the scope of the FDIC's current
supervisory responsibilities as the appropriate Federal banking agency.
The FDIC also proposes to define ``FDIC-supervised insured depository
institution or institution'' and ``State savings association.'' Upon
removal of part 391, subpart A, the Security Procedures, regulations
applicable for all insured depository institutions for which the FDIC
has been designated the appropriate Federal banking agency will be
found at 12 CFR part 326.
I. Background
The Dodd-Frank Act
The Dodd-Frank Act \1\ provided for a substantial reorganization of
the regulation of state and Federal savings associations and their
holding companies. Beginning July 21, 2011, the transfer date
established by section 311 of the Dodd-Frank Act, codified at 12 U.S.C.
5411, the powers, duties, and functions formerly performed by the OTS
were divided among the FDIC, as to state savings associations, the
Office of the Comptroller of the Currency (``OCC''), as to Federal
savings associations, and the Board of Governors of the Federal Reserve
System (``FRB''), as to savings and loan holding companies. Section
316(b) of the Dodd-Frank Act, codified at 12 U.S.C. 5414(b), provides
the manner of treatment for all orders, resolutions, determinations,
regulations, and advisory materials that had been issued, made,
prescribed, or allowed to become effective by the OTS. The section
provides that if such materials were in effect on the day before the
transfer date, they continue to be in effect and are enforceable by or
against the appropriate successor agency until they are modified,
terminated, set aside, or superseded in accordance with applicable law
by such successor agency, by any court of competent jurisdiction, or by
operation of law.
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\1\ Dodd-Frank Wall Street Reform and Consumer Protection Act,
Public Law 111-203, 124 Stat. 1376 (2010) (codified at 12 U.S.C.
5301 et seq.).
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[[Page 75754]]
Section 316(c) of the Dodd-Frank Act, codified at 12 U.S.C.
5414(c), further directed the FDIC and the OCC to consult with one
another and to publish a list of the continued OTS regulations that
would be enforced by the FDIC and the OCC, respectively. On June 14,
2011, the FDIC's Board of Directors approved a ``List of OTS
Regulations to be enforced by the OCC and the FDIC Pursuant to the
Dodd-Frank Wall Street Reform and Consumer Protection Act.'' This list
was published by the FDIC and the OCC as a Joint Notice in the Federal
Register on July 6, 2011.\2\
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\2\ 76 FR 39247 (July 6, 2011).
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Although section 312(b)(2)(B)(i)(II) of the Dodd-Frank Act,
codified at 12 U.S.C. 5412(b)(2)(B)(i)(II), granted the OCC rulemaking
authority relating to both State and Federal savings associations,
nothing in the Dodd-Frank Act affected the FDIC's existing authority to
issue regulations under the FDI Act and other laws as the ``appropriate
Federal banking agency'' or under similar statutory terminology.
Section 312(c) of the Dodd-Frank Act amended the definition of
``appropriate Federal banking agency'' contained in section 3(q) of the
FDI Act, 12 U.S.C. 1813(q), to add State savings associations to the
list of entities for which the FDIC is designated as the ``appropriate
Federal banking agency.'' As a result, when the FDIC acts as the
designated ``appropriate Federal banking agency'' (or under similar
terminology) for state savings associations, as it does here, the FDIC
is authorized to issue, modify and rescind regulations involving such
associations, as well as for state nonmember banks and insured branches
of foreign banks.
As noted, on June 14, 2011, pursuant to this authority, the FDIC's
Board of Directors reissued and redesignated certain transferring
regulations of the former OTS. These transferred OTS regulations were
published as new FDIC regulations in the Federal Register on August 5,
2011.\3\ When it republished the transferred OTS regulations as new
FDIC regulations, the FDIC specifically noted that its staff would
evaluate the transferred OTS rules and might later recommend
incorporating the transferred OTS regulations into other FDIC rules,
amending them, or rescinding them, as appropriate.
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\3\ 76 FR 47652 (Aug. 5, 2011).
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One of the OTS rules transferred to the FDIC governed OTS oversight
of minimum security devices and procedures for state savings
associations. The OTS rule, formerly found at 12 CFR part 568, was
transferred to the FDIC with only nominal changes and is now found in
the FDIC's rules at part 391, subpart A, entitled ``Security
Procedures.'' Before the transfer of the OTS rules and continuing
today, the FDIC's rules contained part 326, subpart A entitled
``Minimum Security Procedures,'' a rule governing FDIC oversight of
security devices and procedures to discourage burglaries, robberies and
larcenies and assist law enforcement in the identification and
apprehension of those who commit such crimes with respect to insured
depository institutions for which the FDIC has been designated the
appropriate Federal banking agency. One provision in part 391, subpart
A (391.5) is not contained in part 326, subpart A. It directs savings
associations and certain subsidiaries to comply with the Interagency
Guidelines Establishing Information Security Standards which were
adopted jointly by the OTS and the FDIC and other banking agencies and
are contained in appendix B to part 364 in FDIC regulations.
After careful review and comparison of part 391, subpart A, and
part 326, the FDIC proposes to rescind part 391, subpart A, because, as
discussed below, it is substantively redundant to existing part 326 and
simultaneously proposes to make technical conforming edits to the
FDIC's existing rule.
FDIC's Existing 12 CFR Part 326 and Former OTS's Part 568 (Transferred
to FDIC's Part 391, Subpart A)
Section 3 of the Bank Protection Act of 1968 directed the
appropriate federal banking agencies and the OTS' predecessor, the
Federal Home Loan Bank Board (``FHLBB'') to establish minimum security
standards for banks and savings associations, at reasonable cost, to
serve as a deterrent to robberies, burglaries, and larcenies and to
assist law enforcement in identifying and prosecuting persons who
commit such acts.\4\ In the initial rulemakings, the agencies consulted
and cooperated with each other to promote a goal of uniformity where
practicable. The initial minimum security rules were simultaneously
issued in January 1969 and were substantively the same.\5\
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\4\ 12 U.S.C. 1882.
\5\ 34 FR 618 (January 16, 1969); 34 FR 621 (January 16, 1969).
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In 1991, the minimum security rules were substantially revised to
reduce unnecessary specificity, remove obsolete requirements and place
greater responsibility on the boards of directors of insured financial
institutions for establishing and ensuring the implementation and
maintenance of security programs and procedures. The former FHLBB rules
at 12 CFR part 563a were redesignated as 12 CFR part 568 by the OTS.
The OTS rules remained substantively the same as the FDIC's rules in
part 326, subpart A.\6\
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\6\ 56 FR 29565 (June 28, 1991); 56 FR 13579 (April 3, 1991).
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In 2001, the FDIC and other federal banking agencies and the OTS
issued Interagency Guidelines for Safeguarding Customer Information
pursuant to section 501 of the Gramm Leach Bliley Act (``Protection of
Nonpublic Personal Information'').\7\ At the same time, the OTS also
added a provision at the end of its security procedures rules at
section 568.5 directing saving associations and certain subsidiaries to
comply with appendix B to the Interagency Guidelines. In a preamble
footnote, the OTS indicated that the reason for the additional
provision to its minimum security rules was ``[b]ecause information
security guidelines are similar to physical security procedures.'' \8\
In 2004, following enactment of the Fair and Accurate Credit
Transactions Act (FACT Act), the OTS, FDIC and other banking agencies
revised the Interagency Guidelines for Safeguarding Customer
Information and renamed them the Interagency Guidelines for
Establishing Information Security Standards. The Interagency Guidelines
were located in the FDIC rules at part 364. In 2015, the FDIC amended
part 364 to, among other reasons, make it applicable to State savings
associations.\9\ After careful comparison of the FDIC's part 326,
subpart A with the transferred OTS rule in part 391, subpart A, the
FDIC has concluded that the transferred OTS rules governing minimum
security procedures are substantively redundant. Based on the
foregoing, the FDIC proposes to rescind and remove from the Code of
Federal Regulations the transferred OTS rules located at part 391,
subpart A, and to make technical amendments to part 326, subpart A to
incorporate State savings associations.
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\7\ 66 FR 8616 (Feb. 1, 2001).
\8\ Id. at footnote 2.
\9\ 80 FR 65903 (October 28, 2015).
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II. The Proposal
Regarding the functions of the former OTS that were transferred to
the FDIC, section 316(b)(3) of the Dodd-Frank Act, 12 U.S.C.
5414(b)(3), in pertinent part, provides that the former OTS's
regulations will be enforceable by the FDIC until they are modified,
terminated, set aside, or superseded in accordance with applicable law.
After reviewing the rules currently found in part 391, subpart A, the
FDIC proposes
[[Page 75755]]
(1) to rescind part 391, subpart A, in its entirety; (2) to modify to
the scope of part 326, subpart A to include State savings associations
and their subsidiaries to conform to and reflect the scope of FDIC's
current supervisory responsibilities as the appropriate Federal banking
agency for State savings associations; (3) delete the definition of
``insured nonmember bank'' and replace it with a definition of ``FDIC-
supervised insured depository institution or institution,'' which means
``any state nonmember insured bank or state savings association for
which the Federal Deposit Insurance Corporation is the appropriate
Federal banking agency pursuant to section 3(q) of the Federal Deposit
Insurance Act (12 U.S.C. 1813(q));'' (4) add a new subsection (i),
which would define ``state savings association'' as having ``the same
meaning as in section 3(b)(3) of the Federal Deposit Insurance Act (12
U.S.C. 1813(b)(3));'' and (5) make conforming technical edits
throughout, including replacing the term ``FDIC-supervised insured
depository institution'' or ``institution'' in place of ``bank''
throughout the rule where necessary.
If the proposal is finalized, oversight of minimum security
procedures in part 326, subpart A would apply to all FDIC-supervised
institutions, including state savings associations, and part 391,
subpart A, would be removed because it is largely redundant of the
rules found in part 326. Rescinding part 391, subpart A, will serve to
streamline the FDIC's rules and eliminate unnecessary regulations.
III. Request for Comments
The FDIC invites comments on all aspects of this proposed
rulemaking, and specifically requests comments on the following:
(1.) What impacts, positive or negative, can you foresee in the
FDIC's proposal to rescind part 391, subpart A?
Written comments must be received by the FDIC no later than January
3, 2017.
IV. Regulatory Analysis and Procedure
A. The Paperwork Reduction Act
In accordance with the requirements of the Paperwork Reduction Act
(``PRA'') of 1995, 44 U.S.C. 3501-3521, the FDIC may not conduct or
sponsor, and the respondent is not required to respond to, an
information collection unless it displays a currently valid Office of
Management and Budget (``OMB'') control number.
The proposed rule would rescind and remove from FDIC regulations
part 391, subpart A from the FDIC regulations. This rule was
transferred with only nominal changes to the FDIC from the OTS when the
OTS was abolished by title III of the Dodd-Frank Act. Part 391, subpart
A, is substantively similar to the FDIC's existing part 326, subpart A
regarding oversight of minimum security procedures for depository
institutions with the exception of one provision at the end of Part
391, Subpart A which directs savings associations to comply with
Interagency Guidelines which are located in appendix B to part 364. In
2015, the FDIC proposed and finalized revisions to part 364 that made
part 364, including the Interagency Guidelines in Appendix B,
applicable to State savings associations as well as State nonmember
banks.
The proposed rule also would (1) amend part 326, subpart A to
include state savings associations and their subsidiaries within its
scope; (2) define ``FDIC-supervised insured depository institution or
institution'' and ``state savings association;'' and (3) make
conforming technical edits throughout. These measures clarify that
state savings associations, as well as state nonmember banks are
subject to part 326, subpart A. With respect to part 326, subpart A,
the Proposed Rule does not revise any existing, or create any new
information collection pursuant to the PRA. Consequently, no submission
will be made to the Office of Management and Budget for review. The
FDIC requests comment on its conclusion that this aspect of the NPR
does not create a new or revise an existing information collection.
B. The Regulatory Flexibility Act
The Regulatory Flexibility Act requires that, in connection with a
notice of proposed rulemaking, an agency prepare and make available for
public comment an initial regulatory flexibility analysis that
describes the impact of the proposed rule on small entities (defined in
regulations promulgated by the Small Business Administration to include
banking organizations with total assets of less than or equal to $550
million).\10\ However, a regulatory flexibility analysis is not
required if the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities,
and publishes its certification and a short explanatory Statement in
the Federal Register together with the proposed rule. For the reasons
provided below, the FDIC certifies that the Proposed Rule would not
have a significant economic impact on a substantial number of small
entities.
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\10\ 5 U.S.C. 601 et seq.
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As discussed in this notice of proposed rulemaking, part 391,
subpart A, was transferred from OTS part 568, which governed minimum
security procedures for depository institutions. The initial minimum
security rules, though issued separately by the agencies, were all
published in January 1969. The OTS rule, part 568 had been in effect
since 1991 and all State savings associations were required to comply
with it. Because it is substantially the same as existing part 326,
subpart A of the FDIC's rules and therefore redundant, the FDIC
proposes rescinding and removing the transferred regulation now located
in part 391, subpart A. As a result, all FDIC-supervised institutions--
including state savings associations and their subsidiaries--would be
required to comply with the minimum security procedures in part 326,
subpart A. Because all state savings associations and their
subsidiaries have been required to comply with nearly identical
security procedures rules since 1969, the Proposed Rule would not place
additional requirements or burdens on any state savings association
irrespective of its size. Therefore, the Proposed Rule would not have a
significant impact on a substantial number of small entities.
C. Plain Language
Section 722 of the Gramm-Leach- Bliley Act, codified at 12 U.S.C.
4809, requires each Federal banking agency to use plain language in all
of its proposed and final rules published after January 1, 2000. The
FDIC invites comments on whether the Proposed Rule is clearly stated
and effectively organized, and how the FDIC might make it easier to
understand. For example:
Has the FDIC organized the material to suit your needs? If
not, how could it present the rule more clearly?
Have we clearly stated the requirements of the rule? If
not, how could the rule be more clearly stated?
Does the rule contain technical jargon that is not clear?
If so, which language requires clarification?
Would a different format (grouping and order of sections,
use of headings, paragraphing) make the regulation easier to
understand? If so, what changes would make the regulation easier to
understand?
What else could we do to make the regulation easier to
understand?
[[Page 75756]]
D. The Economic Growth and Regulatory Paperwork Reduction Act
Under section 2222 of the Economic Growth and Regulatory Paperwork
Reduction Act of 1996 (``EGRPRA''), the FDIC is required to review all
of its regulations, at least once every 10 years, in order to identify
any outdated or otherwise unnecessary regulations imposed on insured
institutions.\11\ The FDIC completed the last comprehensive review of
its regulations under EGRPRA in 2006 and is commencing the next
decennial review. The action taken on this rule will be included as
part of the EGRPRA review that is currently in progress. As part of
that review, the FDIC invites comments concerning whether the Proposed
Rule would impose any outdated or unnecessary regulatory requirements
on insured depository institutions. If you provide such comments,
please be specific and provide alternatives whenever appropriate.
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\11\ Public Law 104-208, 110 Stat. 3009 (1996).
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List of Subjects
12 CFR Part 326
Banks, Banking, Minimum security procedures, Savings associations.
12 CFR Part 391
Security procedures.
Authority and Issuance
For the reasons stated in the preamble, the Board of Directors of
the Federal Deposit Insurance Corporation proposes to amend 12 CFR part
326 and 12 CFR part 391 as set forth below:
PART 326--MINIMUM SECURITY DEVICES AND PROCEDURES AND BANK SECRECY
ACT \1\ COMPLIANCE
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\1\ In its orginal form, subchapter II of chapter 53 of title
31, U.S.C. was part of Public Law 92-508 which requires
recordkeeping for and reporting of currency transactions by banks
and others and is commonly known as the Bank Secrecy Act.
0
1. The authority citation for part 326 continues to read as follows:
Authority: 12 U.S.C. 1813, 1815, 1817, 1818, 1819 (Tenth),
1881-1883; 31 U.S.C. 5311-5314 and 5316-5332.2.
0
2. Revise subpart A to read as follows:
Subpart A--Minimum Security Procedures
Sec.
326.0 Authority, purpose, and scope.
326.1 Definitions.
326.2 Designation of security officer.
326.3 Security program.
326.4 Reports.
Sec. 326.0 Authority, purpose, and scope.
(a) This part is issued by the Federal Deposit Insurance
Corporation (``FDIC'') pursuant to section 3 of the Bank Protection Act
of 1968 (12 U.S.C. 1882). It applies to FDIC-supervised insured
depository institutions. It requires each institution to adopt
appropriate security procedures to discourage robberies, burglaries,
and larcenies and to assist in identifying and apprehending persons who
commit such acts.
(b) It is the responsibility of the institution's board of
directors to comply with this part and ensure that a written security
program for the institution's main office and branches is developed and
implemented.
Sec. 326.1 Definitions.
For the purposes of this part--
(a) The term FDIC-supervised insured depository institution or
institution means any insured depository institution for which the
Federal Deposit Insurance Corporation is the appropriate Federal
banking agency pursuant to section 3(q)(2) of the Federal Deposit
Insurance Act, 12 U.S.C. 1813(q)(2).
(b) The term banking office includes any branch of an institution
and, in the case of an FDIC-supervised insured depository institution,
it includes the main office of that institution.
(c) The term branch for an institution chartered under the laws of
any state of the United States includes any branch institution, branch
office, branch agency, additional office, or any branch place of
business located in any state or territory of the United States,
District of Columbia, Puerto Rico, Guam, American Samoa, the Trust
Territory of the Pacific Islands, the Northern Mariana Islands or the
Virgin Islands at which deposits are received or checks paid or money
lent. In the case of a foreign banks defined inSec. 347.202 of this
chapter, the term branch has the meaning given in Sec. 347.202 of this
chapter.
(d) The term state savings association has the same meaning as in
section (3)(b)(3) of the Federal Deposit Insurance Act, 12 U.S.C.
1813(b)(3).
Sec. 326.2 Designation of security officer.
Upon the issuance of Federal deposit insurance, the board of
directors of each institution shall designate a security officer who
shall have the authority, subject to the approval of the board of
directors, to develop, within a reasonable time, but no later than 180
days, and to administer a written security program for each banking
office.
Sec. 326.3 Security program.
(a) Contents of security program. The security program shall:
(1) Establish procedures for opening and closing for business and
for the safekeeping of all currency, negotiable securities, and similar
valuables at all times;
(2) Establish procedures that will assist in identifying persons
committing crimes against the institution and that will preserve
evidence that may aid in their identification and prosecution; such
procedures may include, but are not limited to:
(i) Retaining a record of any robbery, burglary, or larceny
committed against the institution;
(ii) Maintaining a camera that records activity in the banking
office; and
(iii) Using identification devices, such as prerecorded serial-
numbered bills, or chemical and electronic devices;
(3) Provide for initial and periodic training of officers and
employees in their responsibilities under the security program and in
proper employee conduct during and after a robbery, burglar or larceny;
and
(4) Provide for selecting, testing, operating and maintaining
appropriate security devices, as specified in paragraph (b) of this
section.
(b) Security devices. Each institution shall have, at a minimum,
the following security devices:
(1) A means of protecting cash or other liquid assets, such as a
vault, safe, or other secure space;
(2) A lighting system for illuminating, during the hours of
darkness, the area around the vault, if the vault is visible from
outside the banking office;
(3) An alarm system or other appropriate device for promptly
notifying the nearest responsible law enforcement officers of an
attempted or perpetrated robbery or burglary;
(4) Tamper-resistant locks on exterior doors and exterior windows
that may be opened; and
(5) Such other devices as the security officer determines to be
appropriate, taking into consideration:
(i) The incidence of crimes against financial institutions in the
area;
(ii) The amount of currency or other valuables exposed to robbery,
burglary, and larceny;
(iii) The distance of the banking office from the nearest
responsible law enforcement officers;
(iv) The cost of the security devices;
(v) Other security measures in effect at the banking office; and
(vi) The physical characteristics of the structure of the banking
office and its surroundings.
[[Page 75757]]
Sec. 326.4 Reports.
The security officer for each institution shall report at least
annually to the institution's board of directors on the implementation,
administration, and effectiveness of the security program.
PART 391--REGULATIONS TRANSFERRED FROM THE OFFICE OF THRIFT
SUPERVISION
Subpart A--Security Procedures
0
3. The authority citation for part 391 is revised to read as follows:
Authority: 12 U.S.C. 1819(Tenth).
Subpart A--[Removed and Reserved]
0
4. Remove and reserve subpart A consisting of Sec. Sec. 391.1 through
391.5.
Dated at Washington, DC, this 19th day of October, 2016.
By order of the Board of Directors.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 2016-26062 Filed 10-31-16; 8:45 am]
BILLING CODE 6714-01-P